In the face of mounting evidence of the widespread extent of workplace violence in the healthcare and social assistance sector, OSHA announced in the Federal Register on December 7th, 2016, that it is assessing the need for “a standard aimed at preventing workplace violence in healthcare and social assistance workplaces perpetrated by patients or clients.”  The workplaces and professions affected are numerous – examples include: psychiatric facilities, pharmacies, ERs, and residential facilities; physicians, nurses, aides, social and welfare workers, home healthcare workers, security and maintenance workers.  The Agency has scheduled a public meeting for January 10th in Washington, DC. and has issued a Request for Information (RFI) with comments due on or before April 26, 2017.

Data from the Bureau of Labor and Statistics (BLS) Survey of Occupational Injuries and Illnesses shows that in 2014 workers in the Health Care and Social Assistance sector (NAICS 62) suffered workplace-violence-related injuries over 4 times higher than workers in the private sector.  Other statistics for this sector mentioned in the Federal Register include:

  • Psychiatric hospitals have incidence rates over 64 times higher than private industry
  • Nursing and residential care facilities have rates 11 times higher than private industry
  • Verbal abuse was reported by 42.8 % of respondents in a survey (Jayaratne et al., 1996)
  • In 2014, 79% of serous violent incidents reported by employers in healthcare and social assistance settings were caused by interactions with patients (BLS, 2015, Table R3, p 40)
  • 14 fatalities in 2014 and 10 fatalities in 2013 were homicides

The Agency believes these numbers are probably low for various reasons, such as a reluctance to report incidents of workplace violence, intentional/unintentional underreporting by employers, and questions about whether or not the types of injuries experienced meet OSHA’s criteria for reporting.

OSHA has provided guidelines aimed at protecting healthcare and social assistance workers since 1996.  In 2015 it released its most recent version.  Although the guidelines are comprehensive and detailed, they are guidelines and therefore not mandatory or enforceable.  Currently, OSHA has to rely on the General Duty Clause of the OSH Act to cite an employer.

The RFI is restricted to workplace violence occurring in the healthcare and social assistance sector where “workplace violence is recognized as an occupational hazard” and which “can be avoided or minimized.”  The Agency recognizes that there is a unique relationship between care providers and their patients/clients which would seem to contradict the notion that healthcare and social assistance workers experience such high levels of workplace violence.  OSHA also points to the job growth in this sector which BLS predicted would “account for almost a third of the projected job growth from 2012 to 2022.”

OSHA is seeking answers to specific questions in the RFI to help it assess the need for a standard.  These questions are set out in seven sections.  OSHA seeks answers to questions about things such as the frequency of incidents of workplace violence, where they occur and to whom, the common risk factors, what current steps are helping, and the cost and feasibility involved.

On its website, OSHA “refers to “workplace violence” as any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site.”  However, OSHA has said in Question III.3 that it “has no intention of including violence that is solely verbal in a potential regulation.” Additionally, although OSHA identifies four types of workplace violence based on the relationship between the perpetrator and the victim, the RFI is limited to Type II which covers customer/client/patient violence.  It is also limiting its assessment of workplace violence risk to BLS’s category “Intentional Injury by Other Person” as opposed to “Unintentional or Intent Unknown.”

To read more, or find out how to submit comments and additional materials, click here.

Congressional leaders again have pressed the Department of Labor for information on the Occupational Safety and Health Administration’s potential guidance to OSHA investigators on determining if there is a joint-employer relationship between companies. To read the full article, written by Joseph Dreesen, click here.

On November 17, 2016, OSHA issued a final rule revising and updating its general industry Walking-Working Surfaces standards specific to slip, trip, and fall hazards. The final rule includes revised and new provisions addressing fixed ladders, rope descent systems, and fall protection systems. The rule also establishes requirements on the design, performance and use of personal fall protection systems in general industry. In addition, employers must now train employees on identifying and minimizing fall hazards, using fall protection systems and maintaining, inspecting and storing fall protection equipment.

The final rule allows employers to select the fall protection system that works best for their environment, instead of requiring the use of guardrail systems, which the current rule mandates. Employers now can choose from a range of accepted options, including personal fall arrest, safety new system, ladder safety systems, travel restraint and work position systems. OSHA has permitted the use of personal fall protection systems in construction since 1994 and the final rule adopts similar requirements for general industry.

Continue Reading OSHA Finally Issues Walking-Working Surfaces Rule

The next version of Occupational Safety and Health Administration’s annual voluntary guidance cataloging measures for improving safety and health in the workplace may include insights from the public. For the first time ever, OSHA wants assistance from the public to identify the “leading indicators.” To read the full article, click here.

In July 2016, several trade associations and others (“plaintiffs”) filed suit against OSHA challenging the agency’s anti-retaliation provisions in the final rule, Improve Tracking of Workplace Injuries and Illnesses (81 Fed. Reg. 29,624) (May 12, 2016). The legal challenge alleged the final rule exceeded OSHA’s statutory authority, violated the Administrative Procedures Act and the Occupational Safety and Health Act, and requested the Court to declare the final Rule unlawful and set it aside.

Additionally, the plaintiff’s also requested a nationwide preliminary injunction to permanently delay the effective date of the standard until a decision is reached in the case. Yesterday, the Court denied the plaintiff’s motion for a preliminary injunction on the grounds that the plaintiffs could not show irreparable harm would be incurred without an injunction or that an injunction was necessary to protect the public interest.

The impact of this decision is that employers will have to begin to comply with OSHA’s new rule, Improve Tracking of Workplace Injuries and Illnesses by December 1, 2016.  The “anti-retaliation” provisions set out in sections 1904.35 and 1904.36(b)(1) are effective December 1, 2016 and the remaining provisions pertaining to the electronic submission of recordkeeping information in section 1904.41 are effective January 1, 2017 with the first electronic submission due by July 1, 2017.

A decision on the merits of the legal challenge and the validity of the final Rule has not yet been made.

 

President-elect Donald Trump will assume office on January 20, 2017, with a Republican majority in both the Senate and the House of Representatives. While it is difficult to predict whether the new administration will be able to deliver on President-elect Trump’s campaign promises, we can expect significant policy and enforcement shifts.

To read the full article, written by multiple Jackson Lewis attorneys, click here.

Dr. Michaels, an epidemiologist and professor at George Washington University School of Public Health, was appointed as the 12th Assistant Secretary of Labor for Occupational Safety and Health in December, 2009.  Having served seven years with OSHA, Dr. Michaels is the longest serving Assistant Secretary.

Dr. Michaels recently announced that he would be returning to George Washington University in January 2017.  It is unclear when his last day as the head of OSHA will be, however, he plans on returning before Inauguration day, Friday January 30, 2017.

 

OSHA recently released its preliminary annual list of the top ten safety and health violations cited for fiscal year 2016. While not anticipated to change much, a more final list will be completed closer to the end of 2016.  In descending order, these are:

  1. Fall protection (Construction) – 1926.501 – violations are generally for failing to provide adequate fall protection to employees working at elevated heights.
  2. Hazard communication – 1910.1200 – violations are generally for lack of hazard communication program or inadequate training.
  3. Scaffolds (Construction) – 1926.451 – violations are generally for improper access to scaffolds and improper assembly, such a missing planking.
  4. Respiratory protection – 1910.134 – violations are generally for employees using respirators not being medically evaluated or properly fit tested.
  5. Lockout/tagout – 1910.147 – violations are generally for failing to have a machine specific LOTO procedure, not training authorized or affected employees and for failing to conduct periodic inspections of LOTO procedures.
  6. Powered industrial trucks – 1910.178 – violations are generally for failing to have forklift operators certified and unsafe use of a forklift.
  7. Ladders (Construction) – 1926.153– violations are generally for improper use of portable ladders and use of defective ladders.
  8. Machine guarding – 1910.212 – violations are generally for failing to have machines and equipment adequately guarded.
  9. Electrical wiring – 1910.305 – violation are generally for temporary wiring used in lieu of permanent wiring and inappropriate use of extension (flexible) cords.
  10. Electrical, general requirements – 1910.303 – violations are generally for failing to install electrical equipment properly or for having electrical panels blocked.

This list does not change significantly year-to-year. Over the past five years, the same violations have made the list with only slight variations in the order.  Although OSHA points out that this list is not an exhaustive list of the violations it sees, it believes that “[i]f all employers simply corrected the top 10 hazards, we are confident the number of deaths, amputations and hospitalizations would drastically decline.”